The Common Law #9

The Common Law #9
(The following column originally ran in a February, 2009 edition of the Moody County Enterprise.)

The Common Law:
Free Thought
By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

President Thomas Jefferson once wrote, “I have sworn upon the altar of god, eternal hostility against every form of tyranny over the mind of man.” Freedom of thought is one of the great rights that really sets these United States apart from the rest of the world. It is the fundamental principle that enables us, as a nation, to maintain a government of, by, and for the people. It also enables us to worship as we chose, and enables newspapers like this to be published without government interference. Our national constitution expresses this right as follows: 
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

In South Dakota, we take this right further. Our State constitution further provides that, “No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution,” that we have the right to “make known [our] opinions,” and that when we get sued for libel, we have the right to have a jury decide both facts and the law. 

Our decision to embrace these rights comes with consequences, however. Much as the vast majority of us might like to, we cannot silence the Ku Klux Klan. We cannot prevent tasteless art from being displayed. We cannot even prevent people from burning our national or state flags. In these United States, we leave it up to individual citizens to think about the things they see and hear, and decide for themselves how much attention these things deserve.
Admittedly, this approach makes extra work for us. The funny thing is we, as a people, embrace the burden. President Jefferson probably put it best when he said, “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” 

Also, there are a lot of misconceptions about the right to free thought. For example, contrary to popular belief, the words “a wall of separation between church and state” do not appear in the constitution. These words were also penned by President Jefferson (again,) in a letter to the Danbury Baptist association of Connecticut much later. In fact, although he is often quoted in newspaper columns, President Jefferson did not actually help draft our national constitution at all. He was in France the whole time.

Probably the biggest issue with free speech, however, lies in making sure that it continues to benefit us all. In modern times we do not gather in public places like we used to. If you want to protest something, you need an audience. But where do you go? The mall and the coffee shop are where people congregate today, but these places are privately owned. If the owners do not agree with what you have to say, he can send you and your free speech rights packing. 

Sidewalks and town squares are still public, but how many of us, passing in our cars, slow down and listen to what protesters have to say? How many of us select our news stations based on our own political points of view? How many of us take the time to sit down and talk to each other about important issues at all?

A democratic society requires civil discourse among its citizens in order to survive. As civil discourse declines, a governments' ability to represent the interests of the people likewise declines. Eventually, the whole system stops working. If we do not want this to happen to us, and if we want to preserve these things for future generations, it will be up to us to make the effort.

It is impossible to predict the future, but for now, my advice to each of us is this: find someone who watches a different news station than you, buy them a cup of coffee, and ask them what's on their mind. Your world will be better for it.

The foregoing column is written for informational purposes only, and does not constitute legal advice.  South Dakota's additions to the  right of free tought are found in Article 6 of the State Constitution.  N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at